Without laying down any rule by 86nImH

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									           THE SUPREME COURT OF APPEAL
                 OF SOUTH AFRICA
1.1 Case no: 33/2002
1.2 REPORTABLE


In the matter between:


LEGOA, Michael                               Appellant



and



THE STATE                                    Respondent


Before:           Vivier JA, Streicher JA, Cameron JA, Brand JA and
                  Lewis AJA
Heard:            Friday 13 September 2002
Judgment:         Thursday 26 September 2002

Criminal law – Dealing in dagga – Minimum sentencing legislation,
Act 105 of 1997 – (i) Meaning of ‘value’ – (ii) State must prove
elements of the form of offence contemplated in Schedule before
conviction

                       JUDGMENT
_______________________________________________________

CAMERON JA:

[1] This is an appeal, with leave granted by this Court, against the

      Eastern Cape High Court’s dismissal of an appeal against a
                                               2


     fifteen-year minimum sentence imposed in a regional court for

     dealing in dagga valued at more than R50 000. Two questions

     are in issue: the meaning of ‘value’ in the minimum sentencing

     legislation; and whether at the trial of an accused charged with

     dealing the state is entitled prove the value in question after

     conviction but before sentencing, so as to invoke the minimum

     sentences.



[2] On 6 June 1999 the appellant, then twenty-five years old, was

     arrested near Aliwal North on the Lady Grey/Sterkspruit road. He

     was found driving a motor vehicle belonging to his mother,

     stashed with 261,3 kilograms of dagga (cannabis). Soon after, in

     the Regional Court at Aliwal North, he was charged with dealing in

     a prohibited substance in contravention of s 5(b) of the Drugs and

     Drug Trafficking Act 140 of 1992 (‘the 1992 Act).1 On the main


1
  Section 5 of the 1992 Act prohibits dealing in dependence-producing, dangerous
dependence-producing or undesirable dependence-producing substances. Sub-sections 13(e)
and (f) make contravention of the prohibition on dealing a criminal offence. Section 5 provides
(subject to exceptions not relevant) that ‘No person shall deal in –
(a) any dependence-producing substance; or
(b) any dangerous dependence-producing substance or any undesirable dependence-producing
substance’.
Section 1 provides that ‘”deal in”, in relation to a drug, includes performing any act in connection
with the transhipment, importation, cultivation, collection, manufacture, supply, prescription,
administration, sale, transmission or exportation of the drug’.
Part III of Schedule 2 to the Act classifies ‘Cannabis (dagga), the whole plant or any portion or
product thereof, except dronabinol [(-)-transdelta-9-tetrahydrocannabinol]’ as an ‘undesirable
                                              3


    count (there was an alternative count of unlawful possession)

    the charge sheet read (my translation from the Afrikaans):

        ‘That the accused is guilty of the offence of contravening section 5(b) read
        with sections 13(f), 17(e), 18, 19, 20, 21, 25 and 64 of Act 140 of 1992
in that on or about the 6 day of June 1999 at or near Lady Grey Sterkspruit main
road in the district of Aliwal North the accused wrongfully and unlawfully dealt in
an undesirable dependence-producing substance as contemplated in Schedule 2
of Part III [of] Act 140 of 1992 namely 216,3 kg (cannabis – dagga).’


[3] In a written plea of guilty in terms of s 112(2) of the Criminal

    Procedure Act 51 of 1977 2 the appellant, who was legally

    represented, pleaded guilty to the main count.                           His statement

    recited all the statutory and factual particulars in the charge sheet.

    It added that, in return for an expected payment of R1 000, the

    appellant had been ‘hired by a certain lady’, whose names were to

    him unknown, to convey the dagga from the Lesotho border to

    Aliwal North. There ‘he would have handed the dagga to the lady

    for further distribution and sale by her’. The correct weight of the

    dagga was admitted as 216,3 kg.                         There was no admission

    regarding value.


dependence-producing substance’.
2
  Section 112(2) provides that ‘If an accused or his legal adviser hands a written statement by
the accused into court, in which the accused sets out the facts which he admits and on which he
has pleaded guilty, the court may, in lieu of questioning the accused under subsection (1) (b),
convict the accused on the strength of such statement and sentence him as provided in the said
subsection if the court is satisfied that the accused is guilty of the offence to which he has
pleaded guilty: Provided that the court may in its discretion put any question to the accused in
order to clarify any matter raised in the statement.’
                                4


[4] The State accepted the averments and facts set out in the

   appellant’s plea. The statement was handed up to the presiding

   magistrate and the appellant was convicted as charged.

   Thereafter the prosecution indicated that it would prove no

   previous convictions, but requested a postponement ‘to lead

   further evidence in aggravation of sentence’.



[5] Both the charge sheet and the admission of guilt made express

   mention of the applicable penalty provision in the 1992 statute,

   namely s 17(e).     This specifies for dealing in dangerous or

   undesirable dependence-producing substances a maximum

   sentence of 25 years’ imprisonment, or ‘both such imprisonment

   and such fine as the court may deem fit to impose’. But at the

   time the appellant was charged that provision had been

   superseded.    In 1997 Parliament adopted minimum sentences

   legislation in respect of such dealing.         The Criminal Law

   Amendment Act 105 of 1997 (‘the 1997 Act’) s 51(2)(a)(i) now

   specifies that in the absence of ‘substantial and compelling

   circumstances’ justifying a lesser sentence, a first offender

   convicted of ‘an offence referred to in Part II of Schedule 2’ is
                                            5


    liable to a minimum sentence of 15 years. The portion of the

    Schedule in question specifies ‘Any offence referred to in s 13(f)’

    of the 1992 statute –

       ‘if it is proved that –
       (a) the value of the dependence-producing substance in question is more
            than R50 000,00;
(b) the value of the dependence-producing substance in question is more than
R10 000,00 and that the offence was committed by a person, group of persons,
syndicate or any enterprise acting in the execution or furtherance of a common
purpose or conspiracy; or
                                                                        3
       (c) the offence was committed by any law enforcement officer.’



[6] Despite defence opposition, the postponement sought was

    granted.       When the trial resumed, the State called the police

    officer commanding the South African National Narcotics Bureau

    (SANAB) at Queenstown, Capt van Niekerk, to testify about the

    value of the dagga in question.                    He produced a nationwide

    survey of the approximately two-score SANAB units, of which nine

    were in the Eastern Cape. Five of the Eastern Cape units had

    indicated (consonantly with the findings of the survey as a whole)

    that dagga had a street value of about R1,00 per gram. One had

    shown a value of R5,00 per gram, while another had shown R0,50

    per gram. Returns from two of the Eastern Cape SANAB units,

3
  The 1997 Act’s minimum sentencing provisions were brought into effect on 1 May 1998. Their
operation has from time to time been extended, most recently from 1 May 2001 for a further two
years (Proc R29 in GG 22261 of 30 April 2001).
                                  6


   including the Aliwal North unit, were not shown.           Van Niekerk

   added that in his sixteen years in SANAB, it had always been

   accepted, and his personal experience confirmed, that the street

   value of dagga had remained relatively static at R1,00 per gram,

   or R1 000,00 per kilogram.         He emphasised that this was the

   value of the dagga when sold at its ‘final destination’.



[7] Under   cross-examination,    Van     Niekerk   confirmed     that   in

   estimating the value of the dagga in issue he had in mind its value

   as sold by the street dealer to the street consumer. He expressly

   agreed that its value to the producer would be ‘much, much lower’

   than R1,00 per gram.        The weight seized in the appellant’s

   possession constituted, he agreed, about 20 raw bags.             This

   would be worth to the producer no more than R300,00 to R1

   000,00 per bag (though on occasion perhaps more). The total

   value of the dagga seized would be at most between R15 000 and

   R20 000.



[8] In the regional court the only disputed issue was the value of the

   dagga. The magistrate found that the state had established the
                                7


   ‘potential value’ of the dagga as R1,00 per gram. Despite Van

   Niekerk’s concessions, he held that the only feasible approach

   was potential value. While it was true that the price obtained for

   a consignment could vary, it was up to an accused to convince a

   court that any other value applied. In the absence of substantial

   and compelling circumstances, the appellant therefore had to be

   sentenced to fifteen years’ imprisonment.



[9] On appeal to the Eastern Cape High Court, a second ground was

   argued – that the appellant had not been ‘convicted’ of a

   scheduled offence as contemplated in the 1997 Act. On the first

   issue, the Court (Chetty J, Pillay J concurring) held that ‘value’

   must be given ‘a meaning that could be applied to the ordinary

   everyday facts associated with the illegal drug trade’. Since the

   intended target was the end user, it was the street value that must

   apply. On the second point, the Court held that ‘the value of the

   dependence-producing substance is entirely irrelevant prior to

   conviction’, and that the state did not have to prove value before

   conviction. For the reasons that follow, both conclusions are in

   my view wrong.
                                             8




      ‘Value’ in the minimum sentencing legislation

[10] Nearly a century ago Innes JA observed that the principle ‘that

      the value of an article is, as a general rule, what it will fetch’ was

      well recognised.          Accordingly, ‘the aim should be to estimate

      what could be obtained for it; not what it cost or what its utility to

      the owner would be worth’.4 ‘What it will fetch’ relates of course

      to market value, which Innes JA went on to describe as ‘the most

      uniform test, and the one easiest of practical application.’



[11] ‘Market value’, notoriously, means the price a willing buyer pays

      a willing seller in an open market.                  In the present case, the

      magistrate and the Eastern Cape Division implicitly accepted this.

      But the error they made was to assume that dagga sold in bulk

      and dagga sold in small quantities of 1 gram would sell at the

      same price per gram. The conclusion is at odds with common

      sense.       In any event there is no evidence to support the

      assumption. In fact the evidence is to the contrary. The dagga

      was in twenty bags, each therefore weighing somewhat more than


4
    Pietermaritzburg Corporation v South African Breweries Ltd 1911 AD 501 515. See too de
                                  9


     10kg. Capt van Niekerk testified that the value of such a bag

     was between R300 and R1000. At most, therefore, the dagga

     was worth R20 000. It may have been worth considerably less –

     in any event, nothing even close to the R50 000 the minimum

     sentencing legislation prescribes.



[12] On this ground alone the sentence imposed on the appellant

     was incompetent.      Although this conclusion is sufficient to

     dispose of the appeal, the course the proceedings took in the

     courts below and the conclusions those courts reached on the

     second issue necessitate further examination.



     Can the State prove the value of the dagga after conviction?

[13] The 1997 minimum sentencing legislation requires for its

     application that an accused must have been ‘convicted of an

     offence referred to’ in the Schedule. 5 In this case the offence

     ‘referred to’ in the Schedule is that of dealing in a dangerous

     dependence-producing substance ‘if it is proved that – (a) the

     value of the dependence-producing substance in question is more


Villiers JA at 522.
                                             10


    than R50 000,00’. The question is whether the High Court’s

    conclusion that the value of the substance in question relates

    solely to the question of sentence and is irrelevant before

    conviction, is correct.



[14] In my view for three principal reasons it is not.                     First, the High

    Court’s conclusion flies in the face of the wording of the 1997

    statute. That wording in my view clearly indicates that for the

    minimum sentencing jurisdiction to exist in respect of an offence,

    the accused’s conviction must encompass all the elements of the

    offence set out in the Schedule. (This does not apply when the

    Schedule specifies an attribute not of the offence, but of the

    accused, such as rape when committed ‘by a person who has

    been convicted of two or more offences of rape, but has not yet

    been sentenced in respect of such convictions’.)6 Second, even

    if the wording of the statute were open to more than one

    interpretation (which in my view it is not) the grave injustice that

    the contrary interpretation can cause compels the conclusion that

    the elements of the offence must be established before

5
  The wording of the 1997 statute was amended, in respects immaterial to this appeal, by Act 62
of 2000.
                                           11


    conviction.       Third, the High Court’s conclusion is contrary to

    established principle and practice in our criminal trial courts.



[15] It is an established principle of our law that a criminal trial has

    two stages – verdict and sentence. The first stage concerns the

    guilt or innocence of the accused on the offence charged. The

    second concerns the question of sentence. Findings of fact may

    be relevant to both stages.               However, those in the first stage

    relate to the elements of the offence (or the specific form of the

    offence) with which the accused is charged. Those in the second

    mitigate or aggravate the sentence appropriate to the form of the

    offence of which the accused has been convicted.



[16] The application of this principle was complicated, but its

    essence not affected, when the death sentence was compulsory

    for murder without extenuating circumstances.7 In such trials, the

    finding as to extenuation related to the first stage (the verdict),

    though two phases were required within the first stage, since the


6
  Act 105 of 1997, Schedule 2, Part I
7
  Section 277 of the Criminal Procedure Act 51 of 1977 was amended to abolish the compulsory
death sentence for murder without extenuating circumstances by s 4 of the Criminal Law
Amendment Act 107 of 1990, which came into operation on 27 July 1990.
                                           12


      onus to prove murder beyond reasonable doubt rested on the

      State, while the onus of establishing extenuating circumstances

      on balance of probabilities rested on the accused.8 This meant

      that, once verdict had been pronounced on the accused’s guilt or

      innocence (including in an appropriate case murder with or

      without extenuating circumstances), the question of sentence was

      one for the judge alone, and not for the assessors.9



[17] Where the accused was charged with robbery, the question

      whether        the     robbery      was   committed   with   aggravating

      circumstances had to be determined as part of the verdict – that

      is, as part of the court’s finding on guilt or innocence in the first

      stage.      The aggravating circumstances were elements of the

      form of the offence of robbery with which the accused was

      charged. Hence they had to be proved in the first stage of the

      trial, and the finding regarding their presence or absence was part

      of the main verdict. Their presence or absence accordingly had

      to be decided by the judge with the assessors (or, before the



8
    S v Sparks 1972 (3) SA 396 (A) 404.
9
    S v Lekaota 1978 (4) SA 684 (A).
                                               13


     abolition of juries,10 by the jury).11



[18] It is correct that, in specifying an enhanced penal jurisdiction for

     particular forms of an existing offence, the legislature does not

     create a new type of offence. Thus, ‘robbery with aggravating

     circumstances’ is not a new offence.12 The offences scheduled

     in the minimum sentencing legislation are likewise not new

     offences. They are but specific forms of existing offences, and

     when their commission is proved in the form specified in the

     Schedule, the sentencing court acquires an enhanced penalty

     jurisdiction.       It acquires that jurisdiction, however, only if the

     evidence regarding all the elements of the form of the scheduled

     offence is led before verdict on guilt or innocence, and the trial

     court finds that all the elements specified in the Schedule are

     present. (As pointed out earlier, it is different when the element

     specified in the Schedule relates not to the offence, but to the

     person of the accused, such as rape when committed ‘(iii) by a


10
   By the Abolition of Juries Act 34 of 1969.
11
   S v Jacobs 1961 (1) SA 474 (A), S v Sparks 1972 (3) SA 396 (A) 404.
12
   S v Moloto 1982 (1) SA 844 (A) 850C-D, per Rumpff CJ: ‘Roof, of poging tot roof, met
verswarende omstandighede is nie ‘n nuwe sort misdaad wat deur die Wetgewer geskep is nie.
Dit bly steeds roof, of poging tot roof, maar volgens art 277(1)(c) [of Act 51 of 1977] van verleen
die aanwesigheid van verswarende omstandighede aan die Verhoorregter ‘n diskresionere
bevoegdheid om by skuldigbevinding die doodvonnis op te le.’
                                              14


       person who has been convicted of two or more offences of rape,

       but has not yet been sentenced in respect of such convictions’.)13



[19] A related though distinct question, which has long caused

       complexity,14 has been whether the charge sheet should include

       reference to the elements of the specific form of the offence with

       which the accused is charged. This Court has in the past held

       that it is desirable but not essential that the charge sheet should

       set out those elements. R v Zonele and others15 was decided

       shortly after the Criminal Procedure Act 56 of 1955 was amended

       to make competent the sentence of death if ‘aggravating

       circumstances’ were found in cases of robbery or housebreaking

       with intent to commit an offence. In remarks that have a signal

       bearing on the proceedings in the present case, Ramsbottom JA

       (with whom Rumpff AJA concurred) said:

          ‘Although the presence of aggravating circumstances affects sentence
          only, it is of great importance that a person charged with robbery or with
          housebreaking with intent to commit an offence should be informed, in
          clear terms, that the Crown alleges and intends to prove that aggravating
          circumstances were present.
          It is desirable that the facts which the Crown intends to prove as
          constituting aggravating circumstances should be set out in the indictment,
          as was done in the present case. Without laying down any rule, I venture

13
     Act 105 of 1997, Schedule 2, Part I
14
     See ex parte the Minister of Justice: in re R v Masow and Another 1940 AD 75.
15
     1959 (3) SA 319 (A).
                                           15


       to suggest, for the consideration of Attorneys-General, that it might be
       good practice to go further and, in addition, to allege specifically that the
       accused is charged with robbery (or with housebreaking with intent to
       commit an offence) in which aggravating circumstances were present. …
       When an accused pleads guilty to either of these charges, and it appears
       from the indictment that the Crown intends to prove that aggravating
       circumstances were present, the presiding Judge will, of course, satisfy
       himself that the accused intends to admit not only that he is guilty of the
       offence charged, but also that the aggravating circumstances were
       present. Unless the facts alleged to constitute aggravating circumstances
       are formally admitted they must be proved, and it is, naturally, essential
       that the exact extent of the admissions should be ascertained. …
       It is hardly necessary to remark that even though the accused has
       pleaded guilty the presiding Judge has the inherent power to enter a plea
       of not guilty if for any reason he deems it advisable in the interests of
       justice to do so.’ (323B-F)


[20] Under the common law it was therefore ‘desirable’ that the

     charge sheet should set out the facts the State intended to prove

     in order to bring the accused within an enhanced sentencing

     jurisdiction. It was not however essential.16 The Constitutional

     Court has emphasised that under the new constitutional

     dispensation, the criterion for a just criminal trial is ‘a concept of

     substantive fairness which is not to be equated with what might

     have passed muster in our criminal courts before the Constitution

     came into force’. 17          The Bill of Rights specifies that every

     accused has a right to a fair trial. This right, the Constitutional


16
  See too S v Moloi 1969 (4) SA 421 (A) 424A-C, per van Winsen AJA.
17
  S v Zuma and others 1995 2 SA 642 (CC) para 16, drawing a contrast with S v Rudman and
Another; S v Mthwana 1992 (1) SA 343 (A) 377; and see Sanderson v Attorney-General, Eastern
Cape 1998 (2) SA 38 (CC) para 22, per Kriegler J.
                                             16


       Court has said,18 is broader than the specific rights set out in the

       sub-sections of the Bill of Rights’ criminal trial provision.19 One of

       those specific rights is ‘to be informed of the charge with sufficient

       detail to answer it’. 20         What the ability to ‘answer’ a charge

       encompasses this case does not require us to determine. But

       under the constitutional dispensation it can certainly be no less

       desirable than under the common law that the facts the State

       intends to prove to increase sentencing jurisdiction under the

       1997 statute should be clearly set out in the charge sheet.



[21] The matter is however one of substance and not form, and I

       would be reluctant to lay down a general rule that the charge must

       in every case recite either the specific form of the scheduled

       offence with which the accused is charged, or the facts the State

       intends to prove to establish it. A general requirement to this

       effect, if applied with undue formalism, may create intolerable

       complexities in the administration of justice and may be

       insufficiently heedful of the practical realities under which charge



18
     S v Zuma and others 1995 2 SA 642 (CC) para 16.
19
     Constitution s 35(3)(a) to (o).
20
     Constitution s 35(3)(a).
                                                  17


     sheets are frequently drawn up. 21                        The accused might in any

     event acquire the requisite knowledge from particulars furnished

     to the charge 22 or, in a superior court, from the summary of

     substantial facts the State is obliged to furnish. 23 Whether the

     accused’s substantive fair trial right, including his ability to answer

     the charge, has been impaired, will therefore depend on a vigilant

     examination of the relevant circumstances.



[22] The question thus remains whether the accused had a fair trial

     under the substantive fairness protections afforded by the

     Constitution. In this regard, the judgment of the Full Court of the

     Transvaal Provincial Division in S v Seleke, 24 though delivered

     before the Constitution, remains instructive. The Full Court held

     under the provisions of the Dangerous Weapons Act 71 of 1968


21
     See the remarks of Borchers J in S v Blaauw 1999 (2) SA 295 (W) at 301h-302b.
22
     Section 87 of the Criminal Procedure Act, 51 of 1977, read with s 85(1)(d).
23
     Section 144(3) provides: ‘(a) Where an attorney-general under section 75, 121 (3) (b) or 122
(2) (i) arraigns an accused for a summary trial in a superior court, the indictment shall be
accompanied by a summary of the substantial facts of the case that, in the opinion of the
attorney-general, are necessary to inform the accused of the allegations against him and that will
not be prejudicial to the administration of justice or the security of the State, as well as a list of the
names and addresses of the witnesses the attorney-general intends calling at the summary trial
on behalf of the State: Provided that-
(i) this provision shall not be so construed that the State shall be bound by the contents of the
summary;
(ii) the attorney-general may withhold the name and address of a witness if he is of the opinion
that such witness may be tampered with or be intimidated or that it would be in the interest of the
security of the State that the name and address of such witness be withheld;
(iii) the omission of the name or address of a witness from such list shall in no way affect the
                                             18


    that although it was desirable for the charge to contain reference

    to the penalty, this was not essential, and its omission not

    irregular: the test was whether the accused had had a fair trial

    (681-2).        The Full Court observed (my translation from the

    Afrikaans):

        ‘To ensure a fair trial it is advisable and desirable, highly desirable in the
        case of an undefended accused, that the charge sheet should refer to the
        penalty provision. In this way it is ensured that the accused is informed at
        the outset of the trial, not only of the charge against him, but also of the
        State’s intention at conviction and after compliance with specified
        requirements to ask that the minimum sentence in question at least be
        imposed.’ (682H)



[23] Dealing with the question of verdict, the Full Court held that for

    the enhanced penalty provisions to be applicable the use of a

    ‘dangerous weapon’ as defined had to be proved in the course of

    the State case against the accused (again my translation):

      ‘The use of a “dangerous weapon” as intended in s 4 (1) of the Act must
      be proved by the State in the course of the State’s case. The finding of
      the trial court that the weapon in fact complies with the description in s 1,
      can only be made if (a) the accused is timeously, and, in all cases where
      the accused is unrepresented, with full information about the implications,
      warned that the State before sentencing will make such a claim; (b) the
      accused has been granted a proper opportunity to put his side of the case
      by way of cross-examination, evidence, representations, etc; and (c) the
      court in considering this aspect through its own examination of the object
      in question, or, if it is not before court, by descriptive evidence, is sure
      beyond reasonable doubt that it, objectively speaking, does in fact fulfil the
      statute’s description.
The emphasis we place on this portion of the proceedings is justified by the


validity of the trial.’
24
   1976 (1) SA 675 (T) (Cillie JP, Marais and Le Grange JJ).
                                      19


drastic difference that it may make to sentence.’ (685A-D)


[24] These principles were illuminatingly applied in regard to the

    1997 statute’s minimum sentencing provisions in S v Nziyane.25

    There the scheduled offence was possession of a semi-automatic

    weapon, which for a first offender similarly carries a minimum

    15-year sentence.       The charge sheet averred possession of a

    Norinco pistol, and specified that this was a semi-automatic

    weapon. However, in its verdict the trial court, though observing

    that it was common cause that a Norinco pistol was in general a

    semi-automatic weapon, failed to make a specific finding to this

    effect. Only after the conviction was entered did the State lead

    expert evidence establishing that the pistol the accused

    possessed was in fact semi-automatic. The Court correctly laid

    emphasis on the 1997 Act’s requirement that the accused must

    be convicted of the scheduled offence. The minimum sentencing

    provisions therefore did not apply. Although the legislature had

    not created new offences, it had to appear at conviction that

    elements in question were present.                Botha J observed (I

    translate):
                                               20


          ‘The words in my opinion convey the meaning that the facts that must be
          present to make the minimum sentence compulsory must be established
          at conviction in the sense that they must be included in the facts on which
          the conviction is based.’ (609d)



[25] Botha J concluded that the nature of the weapon was res

       judicata after conviction. Where the accused pleads not guilty,

       the State’s allegation in the charge sheet puts the matter in issue

       at the trial, so that after verdict the State can no longer lead

       evidence on this issue (610b-d). These conclusions seem to me

       clearly right.



[26] In the present matter, the accused pleaded guilty. The State

       accepted not only his plea, but the facts set out in his s 112

       statement.        That statement included express allusion to the

       penalty provision under the 1992 Act.                     After the accused was

       convicted there could thus be no question of applying the

       minimum sentencing provisions of the 1997 statute. As Holmes

       JA pointed out in S v Sparks –

          ‘Indeed, on a plea of guilty being entered, the “trial” ends, since there are
                                                                       26
          then no further issues to be tried in regard to verdict …’



25
     2000 (1) SACR 605 (T) (Botha J, du Plessis J concurring).
26
     1972 (3) SA 396 (A) 404C-D.
                                21


[27] The issues affecting verdict in the present trial were thus

   concluded when, after the State had accepted the appellant’s

   plea, the Court found him guilty on the basis of it. The appellant

   was not warned that the minimum sentencing legislation might be

   invoked. In fact, the charge sheet misled him as to the applicable

   penalty by referring only to the 1992 Act.      The trial court, in

   convicting him, did not question him or satisfy itself (as enjoined

   by Ramsbottom JA) as to the elements of the form of the offence

   to which he was pleading guilty. It was therefore highly unfair to

   confront the appellant thereafter with the minimum sentences.

   More signally, the trial Court in any event lacked jurisdiction

   entirely to impose the minimum sentence.



   Sentence

[28] The sentence imposed on the accused must therefore be set

   aside. The accused has been in custody since his arrest on 6

   June 1999. He was sentenced on 27 August 1999. In view of

   the sentence I consider appropriate under the penalty provisions

   of the 1992 statute, the further delay caused by remitting the

   matter to the trial court to impose sentence itself would be unfair
                                   22


   to the accused.



[29] Given the amount of dagga, the appellant’s avowedly

   intermediary role in its transportation, his clean record, and the

   remorse indicated by his plea of guilty, I am of the view that a

   sentence of five years’ imprisonment would be adequate.




   Order


[30] The following order is made:

   1. The appeal succeeds.

   2. The sentence imposed on the appellant is set aside.

   3. In its place there is substituted:

     ‘The accused is sentenced to five years’ imprisonment,

     antedated in terms of s 282 of the Criminal Procedure Act 51 of

     1977 to the date on which he was originally sentenced, 27

     August 1999.’



                                                       E CAMERON

JUDGE OF APPEAL
                        23



VIVIER JA      )
STREICHER JA   )   CONCUR
BRAND JA       )
LEWIS AJA      )

								
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